JAVED IQBAL, J.--- This appeal preferred under section 410, Cr.P.C. On behalf of Pirak (convict/appellant) against judgment, dated 11-6-1996 passed by learned Additional Sessions Judge, Sibi convicting appellant under section 302, P.P.C. And sentenced him to death.
2. Briefly stated the facts of the case are that on 4-12-1995 convict/ appellant Pirak alongwith two other persons arrived at Taxi Stand located at Chakar Road Sibi, and engaged one Datsun Pick-up pertaining to Khuda Bakhsh (deceased) for Thara Thani towards.
Kahan. Khuda Bakhsh took them in Datsun pick-up but did not reach on third day and resultantly various persons including Lakhmir, Ayaz and Shakar Khan in order to find out his whereabouts, went towards Tharathani and found the tracks of Datsun on their way in between Karmum Wadh and Tharathani and by following the same on some distance they heard voice of Khuda Bakksh which attracted them and they found him in a cave and cave was closed by means of big stones while Khuda Bakhsh was crying and asked them for help. The persons named above attempted to remove the stones but in vain and some of them went to village Talli in vehicle and brought many other persons so that Khuda Bakhsh could be taken out from the cave but by that time he was expired. It is also alleged that prior to his death Khuda Bakhsh told the abovenamed persons that he was thrown in the cave by some persons who engaged his Datsun and also took away the Datsun pick-up but he can identify them and further that the same persons can also be identified by Lakhmir, Ayaz and others as earlier the same persons engaged his Datsun pick-up. The incident was reported to Wazir Khan Levies Sepoy on 6-12-1995 by Muhammad Murad Driver and in pursuant to that information he proceeded to the place of occurrence and removed the stones with help of other persons and shifted dead body to Civil Hospital, Sibi and subsequently the matter was reported to Risaldar Levies Sibi by whom the said information was conveyed to A.C. Sibi. After completion of investigation challan was submitted under section 302/109/34, P.P.C. And section 17, Offences Against Property (Enforcement of Hudood) Ordinance, 1979. On conclusion of trial the learned Sessions Judge convicted and sentenced the convict/appellant for death, hence this appeal.
3. The matter came up for hearing on 1-7-1996 when learned Assistant Advocate-General objected the maintainability of this appeal and referred the dictum of Honourable Supreme Court reported in 1984 SCMR 129 and contended that this appeal should have been filed before Honourable Federal Shariat Court. Messrs Muhammad Aslam Chishti and S.A.M. Quadri Advocates PCr.L.1 who appeared on behalf of convict/appellant requested to study the proposition and controversy was finally dilated upon on 12-11-1996 and Mr. Abdul Karim Khan Yousafzai, Advocate for State, Syed Ayaz Zahoor, Advocate for complainant and Messrs Muhammad Aslam Chishti and S.A.M. Quadri, Advocates for convict/appellant were heard at length. The pivotal question to be decided is as to whether this Court is competent to decide the appeal or it should have been filed before Honourable Federal Shariat Court. It was mainly contended by Mr. Abdul Karim Khan Yousafzai, Advocate on behalf of State that since the appellant was charged for an offence under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979, therefore, mere acquittal of the appellant under that section would not divest the jurisdiction of Honourable Federal Shariat Court to hear the appeal. In this regard 1984 SCMR 129 + 167 was referred.
4. Syed Ayaz Zahoor, Advocate appeared on behalf of complainant, adopted the arguments of State Counsel and also referred 1995 PCr.LJ 724 in support of his contention that this appeal should have been filed before Honourable Federal Shariat Court. Mr. Muhammad Aslam Chishti, Advocate while controverting the position as canvassed by Mr. Abdul Karim Khan Yousafzai, Advocate and Syed Ayaz Zahoor, Advocate, contended that no iota of evidence is available on record to infer that any offence whatsoever was committed under section 17(3), Offence Against Property (Enforcement of Hudood) Ordinance, 1979. In support of his contention he referred para. 4 of the impugned judgment operative portion whereof is reproduced hereinbelow for ready reference:-- "Heard arguments and have gone through the case file and evidence of prosecution. So far as the charge under sections 17(3) Harabah and 109, P.P.C. Is concerned there is no evidence in this regard."
Mr. Muhammad Aslam Chishti, Advocate contended that the learned trial Court never dilated upon the offences allegedly committed under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 as no evidence was available, therefore, the appeal has rightly been filed before this Court and Honourable Federal Shariat Court has no jurisdiction to adjudicate the same.
It is also pointed out that a careful scrutiny of record would show that the provisions as contained in section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 are not at all attracted in this case and after having clean acquittal by the learned trial Court the appeal should have been filed before this Court, and therefore, Honourable Federal Shariat Court does not figure in keeping in view the peculiar circumstances of the case as mentioned above. It is further argued that learned Sessions Judge has sent Murder Reference for confirmation of sentence or as the case may be to this Court, meaning thereby that the matter exclusively falls within the jurisdictional ambit of this Court. Had this not been the situation the Murder Reference would have not been sent to this Court by learned Sessions Judge.
5. We have carefully examined the respective contentions as adduced on behalf of State, complainant and for convict/appellant in the light of relevant provisions of law and record of the case. We have thoroughly examined the evidence as led by the prosecution to determine the nature of accusation. We intend to determine the question of maintainability of this appeal first. As mentioned earlier Mr. Abdul Karim Khan Yousafzai, the learned State Counsel and Syed Ayaz Zahoor, Advocate for complainant referred 1984 SCMR 129 + 167. Syed Ayaz Zahoor Advocate has also referred 1995 PCr.LJ 724. We have carefully examined the dictum as laid down by Honourable Supreme Court in case titled Muhammad Abbas and another v. The State 1984 SCMR 129 wherein a similar proposition was discussed with the following observations:-- "The narration of the facts in the report submitted under section 173, Cr.P.C. Disclosed an offence falling under section 18 of the Ordinance and, therefore, even if the Police Officer had not mentioned that section in his report, the trial Court was competent to frame a charge under section 18 of the Ordinance, also. It is well-established principle of law that the trial Court is not bound by the conclusions reached by the Investigating Officer in his report submitted under section 173, Cr.P.C. See Falak Sher v. State PLD 1967 SC 425. Upon the disclosure of an offence falling under the Ordinance, the Court of Session acquired exclusive jurisdiction to try the same by virtue of the second proviso. To section 20(1) of the Ordinance, which says 'provided further that an offence punishable under the Ordinance shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the Code... ' The Court of Session could alongwith an offence under the Ordinance also try offences under and other law committed in the same transaction, in view of section 235, Cr.P.C. And the first proviso to section 20(1) of the Ordinance. The Federal Shariat Court had rightly, therefore, rejected the objection.
(8) The next objection was in regard to the competency of the reference before the Federal Shariat Court, as according to learned counsel the reference for confirmation of the death sentence on a murder charge could not only before the High Court. In this connection, he pointed out that in fact an appeal (Criminal Appeal No.171 of 1983) had already been preferred before the High Court and is still pending there. As the trial by the Court of Session under the provision of the Ordinance was competent, the appeal would lie only before the Federal Shariat Court in view of the fourth proviso of section 20(1) and a reference for confirmation of the death sentence, to that Court would be competent under subsection (2) of the said section. The objection, too, had been rightly rejected by the Federal Shariat Court."
6. We have also examined the case titled Zaffar Iqbal v. The State 1984 SCMR 167 wherein it was observed as follows:-- "So far as the legal grounds are concerned, we find that in making the first submission the learned counsel has not taken note of section 28 of the Cr.P.L. Which provides as follows:-- '28. Offence under Penal Code.--- Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried---
(a) by the High Court, or
(b) by the Court of Sessions, or
(c) by any other Court by which such offence is shown in the eighth column of the Second schedule to be triable.'
The first proviso to section 20 of the Hudood Ordinance provides that if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefor, be convicted and punished for that offence'. Reading section 28 of the Cr.P.C. Which has been applied by section 20 of the Hudood Ordinance with the first proviso to section 20 of the Ordinance the jurisdiction of the Court of Session to try and punish for the offence under section 354 is fully made out. There was no jurisdictional defect in trying or recording the conviction and sentence under section 354, P.P.C.
An appeal from a trial under the Ordinance lies under the second proviso to section 20 to the Federal Shariat Court. The Federal Shariat Court, therefore, competently heard the appeal and disposed it notwithstanding the fact that the petitioners had filed appeal in the High Court and not in the Federal Shariat Court."
8. We have thoroughly perused the case titled Nazak Mir v. State 1995 PCr.LJ 724 wherein it was held as under:-- "In the light of the aforementioned arguments I proceed to determine the pivotal question as involved in this appeal viz. Whether appeal is competent before this Court or in the alternative such appeal has to be filed before Federal Shariat Court. The important point for consideration would be to see if there had been joint trial of more than one accused person for more than one offence, whether separate appeals can be filed by each of the accused. In this regard, resort has to be taken to the provisions of Code of Criminal Procedure as well as to the Ordinance. Had the appellant been tried separately under section 216-A, P.P.C. And convicted and sentenced to imprisonment for a period of not more than two years then of course appeal would have been competent before this Court in view of clear provisions of section 24 of the Ordinance. But it is not the case here. Admittedly present appellant was jointly challaned and tried alongwith co-accused persons by the learned Sessions Judge Lorlai. Remaining accused persons were convicted and sentenced to imprisonment for more than two years. In the same judgment present appellant was found guilty under section 20 of the Ordinance read with section 216-A, P.P.C. And was awarded imprisonment for two years. The judgment is composite. It is always a judgment or an order against which appeal lies. I do not agree with Mr. Basharatullah that the section relates to individual accused person. In fact the word 'order' used in section 24 refers to the order of the trial Court. If in a joint trial and order is passed convicting an accused under sections 9 and 17 of the Ordinance, appeal shall lie to the Federal Shariat Court. However, by Ordinance Il of 1982 the following words were inserted into this proviso:-- 'or from an order under any provision of this Ordinance which imposes a sentence of imprisonment for a term exceeding two years.'
(12) From bare reading of second proviso to section 24 it becomes abundantly clear that any offence punishable under section 9 or section 17 of the Ordinance shall be triable by a Court of Sessions alone and an appeal from an order under either of the said sections shall lie to the Federal Shariat Court. The amendment in the proviso however, suggests that apart from the two sections (section 9 or section 17) any appeal shall lie to the Federal Shariat Court against an order under any of the provisions of Ordinance which imposes a sentence of imprisonment for a term exceeding two years. Thus, irrespective of quantum of sentence any conviction recorded under section 9 or section 17 of the Ordinance by the Court of Sessions appeal shall lie to the Federal Shariat Court. As far as a sentence of imprisonment less than two years is concerned, it does not relate to section 9 or section 17 but against other sections in the Ordinance and if sentence in any other section does not exceed two years then appeal shall lie to the Federal Shariat Court and in case a sentence is less than two years the appeal shall lie to the Court of competent jurisdiction under Cr.P.C. Mr. Basharatullah contended that present appellant has not been convicted either under section 9 or section 17 of the Ordinance, therefore, according to the second proviso of section 24 of the Ordinance appeal shall not necessarily lie to the Federal Shariat Court. In my calculated view if the trial Court imposes a sentence of imprisonment exceeding two years for any offence under the Ordinance, the appeal shall lie to the Federal Shariat Court irrespective of section 9 or section 17. So, applying this principle to the facts of the present case it is found that co-accused in this case were found guilty under section 20 of the Ordinance and awarded sentence exceeding two years. However, in the same order sentence awarded to the present appellant is two years under section 20 of the Ordinance read with section 216-A, P.P.C.
(13) As pointed out hereinbefore the offences have been committed by the accused persons in the same transaction, therefore, all of them have been challaned and jointly tried. Learned Sessions Judge imposed different sentences including sentence of imprisonment exceeding two years. Such order, therefore, is an order which has imposed a sentence of imprisonment which exceeds two years irrespective of the fact that out of several accused some of them have been awarded even lesser imprisonment, the appeal shall lie to the Federal Shariat Court. It is always the order of the trial Coufi against which an appeal shall lie. Second proviso to section 24 of the Ordinance contemplates that appeal from an order under any provision of Ordinance which imposes a sentence of imprisonment for a term exceeding two years shall lie to the Federal Shariat Court. Learned Sessions Judge, Loralai passed an order imposed sentence of imprisonment exceeding two years, therefore, such order shall be appealable to the Federal Shariat Court and not to the High Court in view of the second proviso to section 24 of the Ordinance."
9. We have also taken into consideration the case titled Falak Sher and another v. State 1996 per.0 804 wherein a similar view was taken which is reproduced hereinbelow for ready reference:- "(6) I have heard the learned counsel for parties and have gone through the record very carefully.
In order to decide the question of jurisdiction of this Court, I would like to refer to section 24, Offences Against Property (Enforcement of Hudood) Order VI, 1979. The first proviso of section 24 reads 'provided further that the offence punishable under this Ordinance shall be triable by a Court of Sessions and not by a Magistrate authorised under section 30 of the said Code, and an appeal from an order under either of the said section or from an order under any other provision of this Ordinance which imposes sentence of imprisonment for a term exceeding two years, shall lie to the Federal Shariat Court: Provided further that trial by a Court of Sessions in this Ordinance shall ordinarily be held at the Tehsil Headquarter in which the offence is alleged to have been committed'.
(7) This provision of law makes it clear that if the trial is conducted for an offence under Article 17, the appeal shall lie to the Federal Shariat Court, irrespective of the fact that ultimately the Court convicts the offender for an other offence falling in P.P.C., because the same section also provides that if it appears in evidence 'that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and to award punishment therefor be convicted and punished for that offence'.
(8) The other important factor is that had the challan not been submitted under section 17 of the Act VI of 1979, the trial would not have been conducted by a Court of Sessions. It Has been held in Muhammad Hussain v. Muhammad Ramzan and others PLD 1982 FSC 11 that the Federal Shariat Court has been given unfettered powers of appeal to examine any sorts of case relating to appreciation of fact or law.
(9) In view of the above discussion, the forum for the appellants to file an appeal was the Federal Shariat Court and not the High Court.
(10) It is directed that the appeal be returned to the appellants or their counsel to present the same before the Federal Shariat Court, if they so desire. Appellants are on bail granted by this Court. Their bail is withdrawn. Non-bailable warrants of arrest are directed to be issued against the appellant.
The warrants are to be executed through the Sessions Judge, Vehari."
10. A bare perusal of the above reproduced dictum laid down in different cases would revel that where a case is registered under the Offences Against Property (Enforcement of Hudood)
Ordinance VI of 1979 (hereinafter referred to as the 'Ordinance') irrespective of the fact whether conviction is awarded or acquittal is made the appeal shall lie to Federal Shariat Court except in those cases where conviction is less than 2 years. Let we point out here that "The Federal Shariat Court was constituted under Article 203-C of the Constitution. Under Article 203-D the powers, jurisdiction and functions of this Court were initially confined to original jurisdiction to examine and decide the question whether or not any law or provision of law was repugnant to the injunctions of Islam as laid down in the Holy Qura'n and the Sunnah of the Holy Prophet (peace be upon him). No other jurisdiction was conferred upon this Court. The final decision given under this Article can be challenged in appeal before the Supreme Court of Pakistan under Article 203-F. For the purposes of the performance of its functions this Court under Article 203-E has been given the powers of a Civil Court trying a suit under the Code of Civil Procedure. The Constitution (Second Amendment) Order, 1980 (P.O. No.4 of 1980) was promulgated on 21-6-1980. By this amendment inter alia the following Article 203-DD was inserted in the Constitution according to which further jurisdiction could be conferred on this Court by or under any law:-- "203-DD. Further jurisdiction of the Court--- The Court shall have such other jurisdiction as may be conferred on it by or under any law."
Simultaneously on the same day, i.e. 21-6-1980 the following statutes were enacted making necessary amendment in the relevant laws conferring appellate jurisdiction upon the Federal Shariat Court:--
(i) The Prohibition (Enforcement of Hadd) (Amendment) Order, 1980, P.O. No.5 of 1980.
(ii)
(iii) #TBS
(iv) (2) The provisions of the Code of Criminal Procedure 1898 (Act V of (v)
(vi) #TBE
(vii) The Offences Against Property (Enforcement of Hudood) (Amendment) Ordinance, 1980 (XIX of 1980).
(viii) The Offence of Zina (Enforcement of Hudood) (Amendment) Ordinance, 1980 (XX of 1980).
(ix) The Offence of Qazf (Enforcement of Hadd) (Amendment) Ordinance, 1980 (XXI of 1980).
Thus, it was for the first time on 21-6-1980, that Shariat Court was vested with the powers of Court of Appeal under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the Offence of Qazf (Enforcement of Hadd)
Ordinance, 1979 and the Prohibition (Enforcement of Hadd) Order, 1979". The position which emerges is that since 21-6-1980 the powers of the appellate Court was conferred upon the Federal Shariat Court and hence it can be inferred safely that appeal in such cases would lie to Federal Shariat Court. It is an admitted feature of the case that offence under section 302, P.P.C., is certainly an offence under the law other than the Ordinance, but Sessions Judge being competent to try both the offences with which the accused is charged, he could pass sentence in a case tried by him under the Ordinance for an offence under the P.P.C., also. What he could do can also be completely done by an appellate Court. In order to clarify the position crystal clear it seems appropriate to reproduce section 24 of the Ordinance which runs as follows:-- "24. Application of Code of Criminal Procedure 1898 (Act V of 1898).--(1) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall apply, mutatis mutandis' in respect of cases under this Ordinance; Provided that if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and to award punishment thereof, be convicted and punished for that offence; (Provided further that an offence punishable under section 9 or section 17 shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the said Code and an appeal from an order under either of the said sections ("or from an order under any other provision of this Ordinance which impose sentence of imprisonment for a term exceeding two years"), shall lie to the Federal Shariat Court; Provided further that trial by a Court of Session under this Ordinance shall ordinarily be held at the Headquarter of the Tehsil in which the offence is alleged to have been committed.
1898), relating to the confirmation of the sentence of death shall apply, mutatis mutandis' to confirmation of sentences under this Ordinance.
(3) The provisions of subsection (3) of section 391 or section 393 of the Code of Criminal Procedure, 1898 (Act V of 1898), shall not apply in respect of the punishment of whipping awarded under this Ordinance.
(4) The provisions of Chapter XXIX of the Code of Criminal Procedure, 1898 (Act V of 1898), shall not apply in respect of punishments awarded under section 9 or section 17 of this Ordinance."
A careful analysis of the language as employed in said section would reveal that it is free from any ambiguity hence the question of any scholarly interpretation does not arise. It would not be out of place to mention here that the words used in the second proviso of the said section "an order" has its own significance. The said expression "an order" would include final order or decision of the trial Court whether resulting in conviction or acquittal of the accused. In'other words every final order of a Court of Session irrespective of its result has been made appealable to Federal Shariat Court under the abovementioned sections, thus, the expression "an order" is not confined to order of conviction but it includes order of acquittal as well. Similarly expression an appeal in the said proviso cannot be confined within a limited barrier as the words "an appeal" has been used in a wider sense and also include appeaf against acquittal. No restricted meaning can be assigned to infer that no appeal can be filed against acquittal and it should be filed only against conviction which would be a misconceived notion. In such view of the matter we have no hesitation to hold that appeal cannot be confined against order of conviction alone but appeal is also competent against order of acquittal. In this regard we are, fortified by the dictum as laid down in PLD 1982 FSC 76, PLD 1982 FSC 11. It is an admitted feature of the case that murder reference has been sent to this Court but it would not coffer the appellate powers for deciding such appeals. Section 24(2) of the Ordinance as reproduced above, would indicate that the provisions of Code of Criminal Procedure relating to the confirmation of sentence of death are made applicable (mutatis mutandis) and as such the murder reference has not been sent in accordance with law to this Court.
We have also dilated upon the question that both the alleged offences were not committed in same transaction. It is well-settled by now that expression ' same transaction' has not been defined in the Code of Criminal Procedure, from its very nature the word 'transaction' is incapable of exact definition and appears to have been purposely used because it has this quality. PLD 1958 Lah. 1052, AIR 1950 Lah.
199. The expression should be interpreted, not in any special or technical way, but in its ordinary etymological meaning of "an affair" or a "carrying through" AIR 1965 Mys. 128, AIR 1994 Bom. 306 (D.B.). It must, however, to be noted that in order that series of fact be regarded as the "same transaction", they must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action. Proximity of time and unity of place are essential though they furnish good evidence of what unites several act" AIR 1965 Mys:,
128. "The real and substantial test for determining whether several offences are connected together so as to form one transaction depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as principle and subsidiary acts, as to constitute one continuous section". PLD 1962 Dacca 424, PLD 1965 Pb. 443, PLD 1958 Lah. 1052, AIR 1958 All. 318, AIR 1954 Sau. 15 and 1954 Cr.LJ 143 (D.B.).
12. The expression "same transaction" has been discussed in various cases by superior judicial forums. In case Ghulam Jillani v. The State PLD 1957 (W.P.) Lah. 290 it was observed:-- "The question whether certain acts or series of acts constitute 'same transaction' is in each case a question of fact and no comprehensive formula of universal application can be laid down. To ascertain whether such acts are parts of the same transaction, it would be essential to see whether they are linked together to present a continuous whole. In Emperor v. Sherufalli Alibhoy ILR 27 Bom.
135, it was observed that the real and substantial test for determining whether several offences are connected together so as to form one transaction 'depends upon whether they are so related to one another in point of purpose, or as cause and effect or as principal and subsidiary acts, as to constitute one continuous whole'.
In Shapurji Sorabji v. Emperor ILR 60 Born. 502, Broomfield, J. While dealing with this question made the following observations:-- ' It seems, therefore, that the main test really be continuity of action. We have to consider what that expression means. It cannot mean, I think merely doing the same thing or similar things continuously or repeatedly for a recurring series of similar transactions is not according to the ordinary use for language, the same transaction continuity of action in the context must, in my opinion, mean this; the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts comes to an end, either by attainment of the object or by being put an end to or abandoned. If any of those things happens the whole process is begun over again, it is not the same transaction but a new one, in spite of the fact that the same general purpose may continue'.
The question whether the mere existence of a common purpose can itself be enough to convert a series of acts into one transaction came up for decision before the Madras High Court in Choragudi Venkatadri v. Emperor ILR 33 Mad. 502 where Abdur Rahim, J. Observed as follows:-- 'As regards community of purpose I think it would be going too far to lay down that the mere existence of some general purpose or design such as making money at the expense of the public is sufficient to make all acts done with that object in view part of the same transaction. If that were so, the results would be startling; for instance, supposing it is alleged but A for the sake of gain has for the last ten years been committing a particular from a depredation on the public, viz. Housebreaking and theft, in accordance with one consistent systematic plan, it is hardly conceivable that he could be tried at one trial for all the burglaries which he committed within the ten years. The purpose in view must be something particular and definite such as where a man with the object of misappropriating a particular sum of money or of cheating a particular individual of a certain amount falsifies books of account or forges a number of documents. In the present case not only is the common purpose alleged too general and vague but there cannot be said to be any continuity of action between one act of misappropriation and another. Each act of misappropriation was a completed act in itself and the original design to make money was accomplished so far as the particular sum of money was concerned, when the misappropriation took place'.
In Kamalkant Roy v. Emperor ILR 1 Cal. 98, it was held that there must be one continuous thread of common purpose running through the acts to support a joinder of charges in respect thereof. In Hira Lal v. Emperor ILR 18 Luck. 403, Agarwal, J. Laid down the following test:-- ' To ascertain whether a series of acts would form part of the same transaction the most important point to be considered is whether there was a common purpose and design and continuity of action'?
In Amrita Lal Hazara v. Emperor ILR 42 Cal. 957, it was observed that the circumstances which must bear on the determination of the question in each individual case whether certain acts constitute a single transaction are proximity of time, unity or proximity of place, continuity of action, community of purpose of design. In Ata Muhammad Khan Alvi and others v. The Crown PLD 1950 Lah. 288, Muhammad Munir, J., Chief Justice of the Lahore High Court (as he then was), after examining a number of authorities in this connection, observed as follows:- An analysis of these cases would show that the offences, the question of whose being parts of the same transaction was involved in them, were related to each other by a casual connection, and such connection seems to be absolutely necessary if two offences are to be treated as having been committed in the course of the same transaction. In such case the offence may be the cause and the other the effect or one may be the occasion for the commission of the other. But while such casual connection is a sine qua non for the constitution of a single transaction, the converse of the proposition need not necessarily be true, and though two facts may be connected together as cause and -effect, they may nevertheless constitute two transactions a joint charge respecting which may be wholly inadmissible."
In another case titled Ali Ahmed Shah and others v. The State PLD 1967 Pesh. 32 the expression of same transaction was examined and reliance was placed on Emperor v. Sherufalli Aliboy wherein at p.138 it was observed:-- "The real and substantial test, then, for determining whether several offences are connected together so as to form the same transaction, depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, so to constitute one continuous offence and another does not by itself necessarily import want of continuity, though the length of the interval may be an important element in determining the question of connection between the two. For instance in Queen-Empress v. Vajiram (1892) 16 Born.
414) proximity of time, combined with the case as to intention and similarity of action and result, was held to bring several offences as to several fraudulent transfers of property within the meaning of the words 'same transaction in section 235 of the Code of Criminal Procedure'.
Proximity of time is not so essential as continuity of action, and purposes. Where there is such continuity of purpose of design and continuity of action, the different act may. Be regard as a transaction. Unity of criminal behaviour actuated by common intention on the part of all the petitioners to get through their candidate in the polling, rendered them liable to joint trial. The first and the second offence of which the petitioners have been acquitted were committed by them in prosecution of a common object and were necessarily parts of the same transaction. All the three incidents happened during the hours of polling. Necessity of joint trial is strengthened when there is additional element of proximity in time as well."
13. On the touch stone of criteria as laid down in the abovementioned authorities the question as to whether the alleged offences were committed in same transaction has been examined. It transpires from scrutiny of record that the deceased was taken, Datsun was hired and snatched, he was thrown in a cave and the culprit disappeared. This all indicates a continuity in the act and action i.e. The steps taken to achieve the object being well-connected and internetted cannot be separated to register different cases for different offences. The series of action were linked together by one motive and design as to constitute one transaction. As discussed earlier the question as to what does or does not form, the transaction is a question of fact and can only be determined after taking into consideration the circumstances of each case. The fact that the alleged offences were committed at different times does not necessarily show that they may not be so connected to fall within the purview of section 235 of Cr.P.C. Proximity of time, unity of proximity of place, continuity of action, community of purpose or design are elements for consideration, whether the alleged facts form the same transaction or otherwise AIR 16 Born.
404. We are, of the considered opinion that the alleged offences were committed in same transaction and could have been tried together by the learned Sessions Judge.
14. We have also examined the challan which was submitted under section 302/109/34, P.P.C. Read with section 17 of the Ordinance. The investigation was also got conducted by Naib-Tehsildar Kahan under the abovementioned sections. The statements got recorded under section 161, Cr.P.C.
Are also indicative of the fact that the alleged offences were committed under section 302/109/34, P.P.C. And section 17 of the Ordinance. In determining the question what is to be looked is not the evidence but the accusation leading up to the charge and scrutiny whereof would show that the offences as mentioned in challan were allegedly committed.
15. The up shot of the above discussion would be that the appeal being not maintainable, is dismissed. The Murder Reference No.11 of 1996 be sent to Federal Shariat Court for further action as may be deemed fit and proper. In such circumstances appeal if so desired may also be filed before Federal Shariat Court and memo. Of appeal alongwith Annexures be returned after retaining its photo copies for official record.